Joe Saucedo Jr. v. State

Affirmed and Memorandum Opinion filed June 3, 2008 Affirmed and Memorandum Opinion filed June 3, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-06-00939-CR ____________ JOE SAUCEDO, JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No. 1045480 M E M O R A N D U M   O P I N I O N Appellant Joe Saucedo, Jr. appeals his conviction for aggravated robbery with a deadly weapon, claiming legal and factual insufficiency of the evidence and ineffective assistance of counsel. We affirm. I. Factual and Procedural Background Complainant Humberto Arias was driving alone in a vehicle and was stopped at a stop sign when appellant and another man entered Arias=s car. Appellant got into the back seat, and the other man got into the front passenger seat. Appellant pointed a gun at Arias, demanded Arias=s wallet, and threatened to shoot Arias. Appellant=s companion held what appeared to be a gun underneath his shirt and also threatened to shoot Arias. Appellant took Arias=s wallet from his back pocket. Appellant then went to the driver=s side of the car and ordered Arias out of the vehicle. Appellant pushed Arias aside and got into the driver=s seat. Appellant and his companion drove away with Arias=s wallet and the car. Arias flagged down a passing motorist, Samuel Martinez, who offered to help. In Martinez=s vehicle, Arias and Martinez followed appellant, who was driving at high rates of speed in the car he had just taken from Arias. Arias and Martinez saw appellant crash Arias=s car into a ditch. Arias armed himself with a pocketknife he borrowed from Martinez. Arias left Martinez=s car and approached appellant and appellant=s companion. Appellant pointed a gun at Arias, and Arias believed the companion also was pointing a gun at him. Arias confronted appellant, and appellant threw Arias=s wallet at Arias. Arias chased appellant on foot for several blocks before appellant threw the gun under a house. Martinez notified police, who arrested appellant and recovered a BB gun from under the house. Police could not locate appellant=s companion or any other firearm. Appellant was charged with aggravated robbery with a deadly weapon, to which he pleaded Anot guilty.@ Arias and Martinez testified at trial. The responding officer testified that the BB gun recovered at the scene was capable of causing serious bodily injury and could be considered a deadly weapon. The only other account of the night=s events was a videotaped statement appellant made while in police custody. In the video, appellant indicated he and his companion, ATony,@ intended to rob Arias of his Adope.@ In appellant=s account of events, appellant stated ATony@ held a toy gun and that appellant sat in the back seat. A jury found appellant guilty of aggravated robbery with a deadly weapon and sentenced appellant to fifty years= confinement. II. Issues and Analysis A. Is the evidence legally and factually sufficient to support appellant=s conviction? In two issues, appellant challenges the legal and factual sufficiency of the evidence on the basis that the State did not prove beyond a reasonable doubt that appellant committed the offense of aggravated robbery with a deadly weapon. Appellant claims the evidence does not support that appellant had the gun. He also contends that the State failed to prove the aggravated element of use of a deadly weapon. Additionally, appellant points to Arias=s two prior convictions for theft as suggesting that the events unfolded as an unsuccessful drug deal in which appellant actually was trying to recover his own property from Arias. In evaluating a legal‑sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellant=s evidence outweighs the State=s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@ Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses= testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether we are able to say, with some objective basis in the record, that a conviction is Aclearly wrong@ or Amanifestly unjust@ because the great weight and preponderance of the evidence contradicts the jury=s verdict. Watson v. State, 204 S.W.3d 404, 414B17 (Tex. Crim. App. 2006). It is not enough that this court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence, and this court cannot declare that a conflict in the evidence justifies a new trial simply because it disagrees with the jury=s resolution of that conflict. Id. at 417. If this court determines the evidence is factually insufficient, it must explain in exactly what way it perceives the conflicting evidence greatly to preponderate against conviction. Id. at 414B17. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. See Fuentes, 991 S.W.2d at 271. In conducting a factual‑sufficiency review, we discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). A person commits the offense of aggravated robbery if, in the course of committing theft and with intent to obtain and maintain control of property, that person knowingly or intentionally threatened or placed another in fear of imminent bodily injury or death and used or exhibited a deadly weapon. Tex. Penal Code Ann. '' 29.02(a)(2), 29.03(a)(2) (Vernon 2003); see Robinson v. State, 596 S.W.2d 130, 132 (Tex. Crim. App. 1980). An individual does not have to successfully commit theft in order to commit robbery. See Crawford v. State, 889 S.W.2d 582, 584 (Tex. App.CHouston [14th Dist.] 1994, no pet.). The law of parties provides that a person is criminally responsible for an offense committed by the conduct of another if the person acts with intent to promote or assist the commission of the offense and solicits, encourages, directs, aids, or attempts to aid the other person in committing the offense. Tex. Penal Code Ann. ' 7.02(a)(2) (Vernon 2003). Under the law of parties, the evidence supports the conviction when the person was physically present at the commission of the offense and encouraged the commission of the offense by words or other agreement. See Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994) (op. on reh=g). To determine whether the defendant was a party, we may examine the events occurring before, during, and after the commission of the offense and rely on the actions of the defendant, which show an understanding of a common design to commit the offense. Id. Appellant stated on the videotape that he and ATony@ intended to rob Arias of his Adope.@ Arias testified that appellant pointed a gun at him and threatened to shoot if Arias did not surrender his wallet. Arias testified that appellant took both his wallet and the car. Martinez testified that when Arias confronted appellant, appellant pointed a gun at Arias before throwing the wallet to Arias. Both appellant and Martinez saw appellant throw the gun beneath the house. Even if appellant had only a BB gun, the responding officer testified that the BB gun recovered from under the house was capable of causing serious bodily injury and could be considered a deadly weapon. See Adame v. State, 69 S.W.3d 581, 582 (Tex. Crim. App. 2002); see also Tex. Penal Code Ann. ' 1.07(a)(17)(B) (Vernon 2003) (defining a deadly weapon as Aanything that in the manner of its use or intended use is capable of causing serious bodily injury@). In viewing the evidence in the light most favorable to the verdict, the jury, as a rational trier of fact, could have found beyond a reasonable doubt the essential elements of aggravated robbery with a deadly weapon. See Wesbrook, 29 S.W.3d at 111; McDuff, 939 S.W.2d at 614; Jasso v. State, 112 S.W.3d 805, 808B09 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). Furthermore, under the law of parties, the evidence is sufficient to support a conviction when, as in this case, appellant was physically present at the commission of the offense and encouraged the principal to commit the offense by words or agreement. See Tex. Penal Code Ann. ' 7.02(a)(2); Ransom, 920 S.W.2d at 302. Appellant and his companion took off together in Arias=s car after taking Arias=s wallet. Under the law of parties, the evidence is sufficient to show that appellant, both in his presence and by leaving with ATony,@ aided his companion in committing the offense and acted with the intent to assist. See Tex. Penal Code Ann. ' 7.02(a)(2); Ransom, 920 S.W.2d at 302. Additionally, even if appellant did not personally use a deadly weapon, the record reflects that appellant=s companion acted as if he were holding a gun beneath his shirt. The evidence is sufficient to sustain the deadly weapon element with regard to the companion. See Wright v. State, 591 S.W.2d 458, 459 (Tex. Crim. App. 1979). Therefore, under the law of parties, appellant is guilty of both the charged offense and the aggravated element because appellant=s companion also appeared to have a gun in the course of taking Arias=s wallet and car. See Tex. Penal Code Ann. ' 7.02(a)(2); Ransom, 920 S.W.2d at 302; Wright, 591 S.W.2d at 459. No evidence suggests that the events unfolded as a Adrug deal gone bad,@ in which appellant attempted to justly recover money from Arias, as appellant claims on appeal. In fact, to the contrary, appellant=s videotaped statement contains appellant=s own words that he and ATony@ planned to rob Arias. The jury, as the sole judge of the credibility of the witnesses and of the strength of the evidence, could choose to believe or disbelieve any portion of the witnesses= testimony. Fuentes, 991 S.W.2d at 271; Sharp, 707 S.W.2d at 614. Given the testimony from Arias and Martinez, even viewing the evidence in a neutral light, we cannot conclude that appellant=s conviction is Aclearly wrong@ or Amanifestly unjust@ or that the great weight and preponderance of the evidence contradicts the jury=s verdict. See Watson, 204 S.W.3d at 414B17. Accordingly, we overrule appellant=s first two issues. B. Did appellant receive ineffective assistance of counsel? Appellant cites to four instances during the guilt-innocence phase in which he claims his trial counsel offered ineffective assistance: (1) failure to file a motion for an investigator, (2) alleged failure to ask sufficient questions in voir dire, (3) alleged concession of appellant=s guilt in opening statements, and (4) failure to poll the jury after the guilty verdict. Appellant claims he received ineffective assistance of counsel in the punishment phase based on his trial counsel=s failure to emphasize appellant=s good traits in closing argument. Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, ' 10; see Tex. Code Crim. Proc. Ann. art. 1.051 (Vernon 2005). This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); see Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel=s representation was deficient in that it fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) the deficiency prejudiced appellant in that there is a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). In assessing appellant=s claims, we apply a strong presumption that trial counsel was competent. Thompson, 9 S.W.3d at 813. We presume that trial counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy, unless that presumption is rebutted. See id. at 813B814; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). This standard has never been interpreted to mean that the accused is entitled to errorless or perfect counsel. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). When reviewing a claim of ineffective assistance, we look to the totality of the representation and not to isolated instances of error or to only a portion of the trial record to determine that the accused was denied a fair trial. Thompson, 9 S.W.3d at 813. A claim for ineffective assistance of counsel must be firmly supported in the record. Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002). When, as in this case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is difficult to show that trial counsel=s performance was deficient. See id. at 833. Trial counsel may have had a specific strategy for his conduct, and a reviewing court may not speculate on trial counsel=s motives in the face of a silent record. Thompson, 9 S.W.3d at 814. If there is no hearing or if trial counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim. Stults v. State, 23 S.W.3d 198, 208-09 (Tex. App.CHouston [14th Dist.] 2000, pet. ref'd). On such a silent record, this court can find ineffective assistance of counsel only if the challenged conduct was Aso outrageous that no competent attorney would have engaged in it.@ Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Failure to File Motion for Investigator Appellant claims that his trial counsel was deficient in failing to file a motion for an investigator. According to appellant, an investigator would have been helpful in investigating Arias=s background and ATony=s@ background, and the investigator could have testified on appellant=s behalf. First, the record does not show that any failure to file a motion for an investigator was not sound trial strategy or due to trial counsel=s ineffectiveness. See Thompson, 9 S.W.3d at 813; Hammond v. State, 942 S.W.2d 703, 710 (Tex. App.CHouston [14th Dist.] 1997, no pet.) (failing to file pre-trial motions suggests trial strategy rather than deficient performance). The decision not to pursue pre-trial motions is considered trial strategy because such motions may not have assisted the defense. See Mares v. State, 52 S.W.3d 886, 891 (Tex. App.CSan Antonio 2001, pet. ref=d). Moreover, appellant does not indicate what evidence the investigator would have uncovered, whether the evidence would have been favorable to his defense, or whether the evidence could have affected the outcome of his trial. See Smith v. State, No. 14-06-00328-CR, 2007 WL 4200590, at *2 (Tex. App.CHouston [14th Dist.] Nov. 29, 2007, pet. ref=d) (mem. op., not designated for publication); Dennis v. State, No. 12-01-00179-CR, 2002 WL 31445299, at *2 (Tex. App.CTyler Oct. 31, 2002, pet. dism=d) (not designated for publication). Any failure to file a motion for an investigator does not amount to ineffective assistance absent a showing in the record that this conduct was not sound trial strategy or was prejudicial to the outcome of this case. See Thompson, 9 S.W.3d at 813; Smith, 2007 WL 4200590, at *2; Hammond, 942 S.W.2d at 710. Alleged Failure to Ask Sufficient Questions During Voir Dire Appellant claims ineffective assistance of counsel based on his trial counsel=s failure to question venire members during voir dire about the burden of proof, reasonable doubt, being victims of crime, connection to law enforcement, and range of punishment. Additionally, appellant claims that his trial counsel failed to sufficiently question venire members about the law of parties. The record reflects that before appellant=s trial counsel conducted voir dire, the trial judge and the prosecutor questioned venire members about the burden of proof and reasonable doubt. Failure to ask questions during voir dire does not necessarily mean that defense counsel=s conduct was deficient; moreover, such conduct does not amount to behavior so outrageous no competent attorney would have engaged in it. See Goodspeed, 187 S.W.3d at 392. Appellant cannot demonstrate on this record that his trial counsel=s failure to ask venire members about some topics was prejudicial or not sound trial strategy. See Williams v. State, 970 S.W.2d 182, 184 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d) (characterizing decision to forgo some questions during voir dire as sound trial strategy in light of trial judge=s extensive participation in voir dire); Jackson v. State, 491 S.W.2d 155, 156 (Tex. Crim. App. 1973) (indicating that length of voir dire questioning could be dictated by trial strategy). On this record, we cannot conclude appellant=s trial counsel=s conduct has been shown to be deficient. Alleged Concession of Guilt in Opening Statement Appellant claims ineffective assistance based on the following remarks made by his trial counsel in his opening statement: Joe was in it for the ride. He was in the back seat. He jumps in the front seat. He wants to get out of there. He wants to get higher than he was but now stands guilty of aggravated robbery, which, ladies and gentlemen, I think you=ll find by the end of the trial and on the Court=s charge should be unauthorized use of a motor vehicle. On this record, we cannot speculate as to whether appellant=s trial counsel intended to concede appellant=s guilt, or whether trial counsel simply misspoke as the State argues, or whether counsel=s remarks were intended to support a strategic decision. See Thompson, 9 S.W.3d at 814. However, a concession of guilt is an acceptable trial strategy for defense counsel to incorporate in an attempt, as in this case, to persuade the jury to find the accused guilty of a lesser offense. See Hathorn v. State, 848 S.W.2d 101, 118 (Tex. Crim. App. 1992); Belton v. State, 900 S.W.2d 886, 901 (Tex. App.CEl Paso 1995, pet. ref=d). Therefore, this conduct did not deprive appellant of effective assistance of counsel. See Hathorn, 848 S.W.2d at 118. Failure to Poll the Jury Appellant claims he received ineffective assistance of counsel when his trial counsel failed to poll the jury at the end of the guilt-innocence phase. The jury reached a unanimous verdict of Aguilty@ after one and a half hours of deliberation. The record does not indicate that the jurors experienced conflict in their deliberations. The trial court offered the parties an opportunity to poll the jury, which appellant=s counsel declined. Following the verdict, the trial court held a lunch recess. After this recess, which lasted roughly one and a half hours, appellant=s trial counsel asked the trial court to poll the jury. The trial court declined to do so. AWhen the jury agrees upon a verdict, . . . and neither party requests a poll of the jury, the verdict shall be entered upon the minutes of the court.@ Tex. Code Crim. Proc. Ann. art. 37.04 (Vernon 2006). Requesting that the jury be polled is not mandatory, and absent evidence within the record for a need to poll the jury, appellant=s trial counsel=s conduct was not deficient for failing to request the court to poll the jury. See Tex. Code Crim. Proc. Ann. arts. 37.04, 37.05 (Vernon 2006); McDade v. State, No. 06-01-00134-CR, 2002 WL 31719501, at *5 (Tex. App.CTexarkana Dec. 5, 2002, no pet.) (mem. op., not designated for publication). Failure to Emphasize Appellant=s Good Character Traits in Closing Argument Appellant claims that at the end of the punishment phase, his trial counsel was ineffective because he did not emphasize appellant=s good character traits in his closing argument. Appellant=s trial counsel=s closing argument was brief. However, brevity of an argument does not show ineffectiveness of counsel; in fact, sometimes brevity is very effective. Reese v. State, 905 S.W.2d 631, 638 (Tex. App.CTexarkana 1995, pet. ref=d). Choosing what type of closing argument to make is a matter of trial strategy. Ortiz v. State, 866 S.W.2d 312, 315 (Tex. App.CHouston [14th Dist.] 1993, pet. ref=d). Applying strategy in closing argument does not constitute ineffective assistance of counsel. Jenkins v. State, 870 S.W.2d 626, 631 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d). The record is silent as to why appellant=s trial counsel did not argue appellant=s positive character traits; however, to find such conduct ineffective, this court would have to speculate as to trial counsel=s strategy. See Thompson, 9 S.W.3d at 814. On this record, appellant cannot rebut the presumption that any of his trial counsel=s conduct, of which appellant complains, is sound trial strategy. See Thompson, 9 S.W.3d at 813; Jackson, 877 S.W.2d at 771. Furthermore, appellant has failed to demonstrate actual prejudice by showing that the outcome of the trial or punishment would have been different but for his trial counsel=s conduct. See Thompson, 9 S.W.3d at 812; Jackson, 973 S.W.2d at 956 . Therefore, we overrule appellant=s third and fourth issues. Having overruled all of appellant=s issues, we affirm the trial court=s judgment. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed June 3, 2008. Panel consists of Justices Fowler, Frost, and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b).